Zoran Oklopcic is Assistant Professor, Department of Law, Carleton University, Ottawa. Hs previous EJIL:Talk! post on Self-Determination and the Status of Kosovo can be found here.

As we digest the meaning and implications of the recent Advisory Opinion, Separate and Dissenting Opinions, I’d like to offer two preliminary remarks: the first deals with the (lack of) mention of the right to self-determination of peoples, and secondly regarding the identity of the author of the Declaration of Independence of Kosovo.

In its decision, the Court declined to ‘apply’ straightforwardly the norm of self-determination to judge the UDI ‘illegal’ or ‘legal’. Had it chosen to follow the suggestions of Spain, Argentina, Serbia, China and others, Kosovo’s UDI would have been judged illegal because ‘external’ self-determination doesn’t apply outside of the contexts of decolonization and military occupation. Conversely, if following Albania, Estonia, Poland, Germany, Ireland and others, Kosovo’s UDI would have been legal under the ‘remedial’ variant of self-determination.

The Court chose instead to follow the suggestions of the United States, Britain and several other countries, and not to engage in interpretation of the question of self-determination at all. In a situation where opinions on the applicability of self-determination sharply diverge, seeking the lowest common denominator, the lex specialis of UN Resolution 1244 to judge Kosovo’s UDI, could have appeared as a prudent strategy. Interestingly, the Court did not refer to the parallel prong of the US argument—“the unique combination of factors”—that sought to provide a moral component to the otherwise technical reasoning that anchored the legal argument in the interpretation of Res. 1244. Read the rest of this entry…

What is the role of self-determination in regulating territorial conflicts in the post-Cold War world? According to the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia: there is no such role. The Report takes a conservative view on the principle of self-determination claiming that it can justify the emergence of new states only in the contexts of decolonization. While noting that there is a body of scholarship that understands self-determination in a remedial way—as a right of seriously persecuted groups to secede from an oppressive state, the Report claims that documents that purport to give backing to this interpretation, such as the Friendly Relations Declaration, are merely “ a deviation from general state practice” (138).

The Report is not without ambiguities, and quite possibly inconsistencies. In Chapter 3 of Volume 2, the Report discusses the criteria for statehood consisting of objective and ‘additional’ criteria. The objective criteria are a defined territory, a permanent population, and an effective government. Interestingly, the Report mentions self-determination as an additional “standard for the qualification of an entity as a state”, which together with prohibition of the use of force and the degree of recognition of the entity ought to inform the judgment of states about whether or not to recognize the nascent entity as an independent state. From this list, one might infer that the officials of foreign states ought to make a judgment about whether the emergent entity has been created in accordance with the principle of self-determination. Given the Report’s opinion on the geographical and historical scope of self-determination, such a judgment couldn’t apply to the states that arose outside of a decolonization context. A more charitable (if questionable), reading of the ‘additional standard’ would be to understand self-determination in its internal capacity. Understood this way, the “qualification” of whether a state exists would turn on whether the new entity provides mechanisms for participation, representation and political equality. The Report does maintain the possibility that the additional criterion of self-determination is not necessarily a legal norm, but a political standard. Such an interpretation would show the way out of inconsistency, but would immediately open up a more difficult question: How can we access the putative normative promise of self-determination now that self-determination had become a defunct legal principle unable to tell us when to trigger the creation of a new polity, how to draw its boundaries, and what degree of recognition to accord to such an entity? Read the rest of this entry…